What about guaranteed outcomes?

It is highly controversial to suggest or to claim that you, as a mediator, can guarantee an agreement to a dispute before or during the mediation process.  The ethics of mediation require that the parties determine the outcome of the dispute rather than the mediator, and that the mediator not favor or disfavor any particular outcome.  Thus it is assumed that to guarantee an agreement would be to hamper the parties’ self-determination and threaten his or her own neutrality.

Taking these considerations into account, I respectfully disagree.  I believe that a mediator can attempt and intend to reach an agreement with the parties, so long as the mediator does not have any favor or disfavor for the content of that agreement or the completeness of that agreement.  In other words, if a partial agreement on a few of the terms of the dispute counts as an agreement, and if the mediator is completely neutral as to the content of the agreement, than it does not compromise party self-determination nor mediator neutrality to guarantee an agreement prior to the start of mediation.

My reasoning for examining this question is as follows: potential mediation clients look for mediation for a specific purpose, and that purpose is usually to reach an agreement on a specific issue.  The ability to facilitate an agreement is the service that mediators are providing to their customers.  Like any other service occupation, the job is valued on the service it provides, i.e., there is no inherent worth in the service – it only gains value in the eyes of the consumer who either gain value or lose value from it.

 

 

The Inevitable Shift in Resources from Lawyers and Courts to Mediation

It has long been a frustration of mine that states have set up structures and programs for volunteer mediation to resolve disputes at no pay for the mediator, while simultaneously sustaining multi-billion dollar legal (court) systems that provide a unique playing field for attorneys who are expected to charge at least $100 an hour, minimum, for their time, while often making conflicts more intense rather than less so.

We live in a world where information is easier and easier to locate, read, and apply to one’s own situation.  One of the attorney’s primary roles has been to keep up to date on specific areas of information that pertains to certain areas of law.  Yet the other role of attorneys has been, and continues to be, to WIN cases for a client in an adversarial process – a process that systematically encourages procedural tricks, intimidation, and withholding information rather than talking things out and working towards cooperation.  In both the business world and world of interpersonal relationships, more and more people are realizing that the “transaction costs” of going to court are just not worth it.

In the State of Colorado, where I am licensed, official statistics show that 70% of all parties in civil court do not have attorneys representing them.  Many analysts predict that this trend will only increase, as more people rely on the internet to get information.  In Great Britain, chat bots are providing legal case evaluations of real claims over the internet without an actual person listening and giving advice.  And in the United States, many online companies now provide legal forms for all 50 states for common matters such as divorce and writing wills.

Mediation fits in by providing an alternative venue for legal disputes – with an alternative framework and lower transaction costs.  Yet currently that venue is typically nothing more than a small conference room in a low-rent office building in the county in which you live, instead of an elaborate stone courthouse with a dome on top.  The mediator is usually a volunteer, a member of the community who can afford not to work for a few hours during the day – instead of an elected or appointed Judge with a six figure salary.  The contrast in official state support for the courts and for mediation is striking – but the difference in types of cases that each venue can handle is not.

Although we may not realize it today, the stone courthouse with its strictly adversarial system is a relic of our past that will be overcome by the laws of entropy and the laws of the free market.  The law of entropy states that energy moves from order to disorder and from isolation to dispersion.  In society, entropy means that structures and institutions only persist to the extent that they are maintained with resources and energy, but the natural state of things is to change.  The laws of the free market, assuming that they exist, state that a more efficient use of resources will be selected and favored over a less efficient use of resources.  In society, the free market means that when a structure or institution becomes too expensive to use, the people will find and use alternative means to get things done.  Mediation is one of those alternative means that addresses problems efficiently and quickly and at lower cost.

You may be wondering – what about attorneys?  There is no doubt that people will still need legal advice, and in many cases, lawyers will be needed to participate in mediation to ensure that their clients are aware of their legal rights throughout the process.  But once legal information is more readily available and a non-adversarial dispute resolution system is established and funded at a level that can serve large numbers, people will (justifiably) not be willing to pay as much for attorneys as they do now.